Civil Procedure Updates

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Function Claim Language Shows That Claims are Directed to Abstract Idea, Not a Concrete Technical Innovation

In Affinity Labs of Texas v. Amazon.com, Inc., [2015-2080] (September 23, 2016) the Federal Circuit affirmed judgment on the pleadings that U.S. Patent No. 8,688,085 on a System and Method to Communicate Targeted Information...more

New Delaware Unclaimed Property Decision Further Complicates Landscape

Another federal judge slams Delaware’s unclaimed property audit methodology but rejects the holder’s reliance on the priority rules as a defense to the audit demands. See Marathon Petroleum Corp. et al. v. Cook et al., No....more

Ledcor: Taming Sattva’s Wild Horse of Contractual Interpretation for Standard Form Contracts

The Supreme Court of Canada’s unanimous decision of Sattva v. Capital Corp. v. Creston Moly Corp., 2014 SCC 53 opened the barn door and let loose a wild horse in terms of the scope and the availability of the use of the...more

International Comity is Alive and Well: Second Circuit Defers to China’s Interpretation of Its Own Laws in Vacating...

Last week, the Second Circuit affirmed that U.S. courts should, and indeed must, defer to a foreign government’s interpretation of its own laws. That should hardly be a controversial proposition, but up until now, lower...more

Summary Judgment Horror Story For Stephen King’s Literary Agent

While many breach of contract cases are resolved by motions to dismiss or summary judgment, a recent decision from the Appellate Division, First Department, Kramer v. Greene, (1st Dep’t Aug. 11, 2016), has shown that when it...more

Fifth District Appellate Court Reverses Defense Verdict, Remands for New Trial on Issue of Damages

Larry Claro v. Shirley Ann DeLong, 2016 IL App (5th) 150557 (August 31, 2016). The Fifth District Appellate Court recently reversed a St. Clair County jury verdict in favor of the defendant and remanded the case to the...more

“Rather Broad” Discovery Request Is Nonetheless Proportional to Case

First Niagara Risk Mgmt., Inc. v. Folino, No. 16-1779 (E.D. Pa. Aug. 11, 2016). The court concluded that the plaintiff’s requested scope of discovery from the defendant’s electronic devices, while “rather broad,” was...more

A Reprieve for Arizona Businesses: State Judge Stays More Than 1,100 Cases by Serial ADA Plaintiff

On September 23, 2016, an Arizona judge granted at least a temporary reprieve to more than 1,100 Arizona businesses that have been beleaguered by lawsuits alleging that their parking lots lack sufficient accessible parking...more

Appellate Court Notes

Supreme Court Advance Release Opinions: SC19586 - Harrington v. Freedom of Information Commission - The Court started off by saying..... We have not previously had occasion to squarely address..... [this]...more

Third Circuit Creates Framework for Analyzing Numerosity

The Third Circuit recently vacated class certification, granted by the Eastern District of Pennsylvania after nearly a decade of litigation, in an antitrust case alleging that a pharmaceutical company entered into agreements...more

California Supreme Court Sets New Deferential Standard for Supplemental CEQA Review

In Friends of the College of San Mateo Gardens v. San Mateo Community College District, No. S214061 (Cal. September 19, 2016), the California Supreme Court rejected the “new project” test for determining whether a changed...more

Can Using Social Media Lead to a Lawsuit? (Part 3)

In this third and final part of this blog series, I will address the intersection of social media and intellectual property rights, as well as how and when social media may be used as evidence during trial....more

Court Limits Request for Social Media to Certain Relevant Information (Louisiana)

Baxter v. Anderson, 2016 U.S. Dist. LEXIS 110687 (M.D. La. Aug. 18, 2016) - In this personal injury case, the defendant moved the court to compel a wide range of discovery related to the plaintiff’s social media...more

Generalized Common Sense Allegations Cannot Be Used to Supply Important Missing Claim Limitation

Addressing the use of common sense for an obviousness analysis, the US Court of Appeals for the Federal Circuit held that conclusory statements about common sense cannot be used to supply missing claim limitations that play a...more

Stripped of Excess Verbiage, Claim Directed to Streaming Out-of-Region Media to Cell Phones in an Abstract Idea

In Affinity Labs of Texas, LLC v. DirecTV, LLC, [2015-1845, 2015-1846, 2015-1847, 2015-1848] (September 23, 2016), the Federal Circuit affirmed the dismissal of the Complaint for patent infringement for failure to state a...more

General Court Confirms that the Commission May Rely on Lawfully Seized Recordings Even if Made Unlawfully by a Third Party

On 8 September 2016 the General Court (“GC”) dismissed Heiploeg’s appeal against the European Commission’s (“Commission”) decision in Shrimps (AT.39633) and confirmed that the Commission may rely on recordings seized lawfully...more

Double-Checking Alice Using Common-Sense Distinctions Between Ends and Means

Following its decision in Enfish (IP Update, Vol. 19, No. 6), the US Court of Appeals for the Federal Circuit provided additional guidance on determining whether a patent claim includes an inventive concept, thereby rendering...more

New California Limits on Choice-of-Law and Venue Provisions in Employment Contracts, Including Arbitration Agreements, with...

Recently, Governor Jerry Brown signed S.B. 1241, which addresses choice-of-law and venue provisions in employment contracts that are entered into, modified or extended on or after January 1, 2017. Under the bill, the...more

Whistleblower’s Attorney’s Communications with Regulators Found to be Protected by Work Product Doctrine

A California Magistrate Judge in BofI Federal Bank v. Erhart ruled that a whistleblower’s attorney’s communications sent to federal regulators were protected by the attorney work product doctrine. No. 15-cv-2353 (S.D. Cal....more

The Halo Effect: Original Halo Case Remanded to District Court to Consider New Test for Enhanced Damages

Earlier in 2016, the Supreme Court of the United States issued its landmark decision in Halo Electronics v. Pulse Electronics and Stryker v. Zimmer, modifying the US Court of Appeals for the Federal Circuit’s previous...more

In Autoimmune Disorder Diagnosis Patent Case, Section 101 Motion to Dismiss Denied

In a recent decision from the District of Massachusetts, Judge Indira Talwani denied a motion to dismiss a patent suit under Rule 12(b)(6) for failure to state a claim due to patent ineligibility under 35 U.S.C. § 101 . In...more

Plaintiff Granted Dismissal Based on Covenant Not to Sue Even With Motion to Dismiss for Lack of Patentable Subject Matter Pending

The plaintiff, Shipping and Transit, LLC ("Plaintiff"), filed a patent infringement action against Defendant Neptune Cigars, Inc. ("Defendant"), for infringement of U.S. Patent Nos. 6,415,207 ("the '207 Patent") and 6,763,299...more

Court of Appeal Finally Weighs in on “The Reptile:” Object and Protect

In Regalado v. Callaghan, No. INC1203669, a California Court of Appeal (Fourth Appellate District, Division One), for the first time in a published opinion, recently addressed the “Reptile Theory” which has been a hot topic...more

"Take-Home" Asbestos Case Decision Could have Ripple Effect

Companies facing "take-home" asbestos or other toxic tort exposure claims in Arizona, or in other jurisdictions applying Arizona law, now have a new case to cite in dispositive motions. With the Sept. 20 Arizona Court of...more

One Year Later: The Yates Memo, False Claims Act and Director & Executive Liability

On September 19 and 27, 2016, the US Department of Justice announced two False Claims Act settlements that required corporate executives to make substantial monetary payments to resolve their liability. How will director and...more

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